Cleveland State University
EngagedScholarship@CSU
Journal of Law and Health
Law Journals
2003
True Risk Management: Physicians' Liability Risk
and the Practice of Patient-Centered Medicine
Anand Das
Jack Schwartz
Maryland Attorney General's Office
Evan G. DeRenzo
Center for Ethics, Washington Hospital Center
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Anand Das, Jack Schwartz, & Evan G. DeRenzo, True Risk Management: Physicians' Liability Risk and the Practice of PatientCentered Medicine, 18 J.L. & Health 57 (2003-2004)
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TRUE RISK MANAGEMENT: PHYSICIANS’ LIABILITY RISK
AND THE PRACTICE OF PATIENT-CENTERED MEDICINE
ANAND DAS1
JACK SCHWARTZ2
EVAN G. DERENZO3
[The New York Times] With your heavy patient load, do you get to know
any of them personally?
[Dr. Benjamin Carson] Oh, absolutely. That’s important. Getting
emotionally involved, I think, is a good thing. Of course, when there’s a
bad outcome, it’s difficult.
Just a few weeks ago, I cried right in the operating room because the
patient was brain dead. I had grown so close to that family that I had a
picture of the little boy in my pocket. And yet, we had done everything
we could possibly do. The family knew that. The parents were in no way
bitter. There were hugs all around. It really is difficult.
By the same token, I’ve never spent a day in court.4
I. INTRODUCTION ...................................................................... 58
II. BACKGROUND........................................................................ 59
A. Physician Perception of Litigation Risk ........................ 59
B. Liability Risk and Technical Error ................................ 59
C. Responses to the Increased Risk of Liability ................. 61
D. The Practice of Defensive Medicine .............................. 61
III. DISCUSSION ........................................................................... 62
A. Consequences of Defensive Medicine and
Flawed Risk Management Strategies............................. 62
B. The Importance of Communication ............................... 63
C. Disclosure of Mistakes................................................... 64
D. A Patient-Centered Approach........................................ 66
1
Mr. Das (M.P.A., Princeton University) was a Governor’s Policy Fellow in the Maryland
Attorney General’s Office when this article was written.
2
Mr. Schwartz (J.D., Yale University) is an Assistant Attorney General and Director of
Health Policy Development for the Maryland Attorney General’s Office.
3
Dr. DeRenzo (Ph.D., University of Maryland) is a bioethicist at the Center for Ethics,
Washington Hospital Center. The authors thank Lamine Reese, Esq., for his assistance in the
early development of this article.
4
CLAUDIA DREIFUS, SCIENTIFIC CONVERSATIONS 199 (2001).
57
58
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[Vol. 18:57
IV. CONCLUSION.......................................................................... 68
I. INTRODUCTION
The late Dr. Avedis Donabedian, a leading evaluator of health care quality,
captured the essence of quality care by describing the “technical” and “interpersonal”
skills upon which physicians must rely.5 “The quality of technical care,” he stated,
“consists in the application of medical science and technology in a manner that
maximizes its benefits to health without correspondingly increasing its risks. The
degree of quality is, therefore, the extent to which the care provided is expected to
achieve the most favorable balance of risks and benefits.”6
“Interpersonal competence,” on the other hand, requires that “the management of
the interpersonal relationship must meet socially defined values and norms that
govern the interaction of individuals in general and in particular situations. These
norms are reinforced in part by the ethical dicta of health professions, and by the
expectations and aspirations of individual patients.”7
While most physicians understand that a serious deficiency in technical care
increases their risk of liability, too often their risk management behavior indicates
that they do not fully appreciate the impact that poor interpersonal skills have on
patients’ motivations to sue. Ironically, many of these physicians have taken risk
management steps that have increased, rather than reduced, their exposure to
lawsuits.
In this paper, we argue that a strong legal and factual claim does not invariably
explain patients’ decisions to sue. Dissatisfaction with the physician’s interpersonal
care as well as with the clinical outcome is often a factor. Conversely, patients with
a potentially meritorious claim may forego legal action due to the strength of the
relationship with the physician.
In view of patients’ motivations to sue, we advocate a more broadly conceived
approach to reducing liability risk, one that honors the ethical aspirations of medicine
instead of the secretive counsels of misguided risk management. To be sure,
strategies to reduce technical error are necessary, but they are not sufficient. Errors
causing harm will inevitably occur. The first step in the liability path is the patient’s
decision to transform the fact of harm into a legal claim. Whether this crucial first
step is taken, as research has shown, can be strongly influenced by the physician’s
interpersonal competence: the more open and honest physicians are towards their
patients, the less likely these patients will pursue litigation.8 Thus, we argue that
5
AVEDIS DONABEDIAN, EXPLORATIONS IN QUALITY ASSESSMENT AND MONITORING THE
DEFINITION OF QUALITY AND APPROACHES TO ITS ASSESSMENT 4 (1980).
6
Id. at 5.
7
Id. at 5.
8
Our discussion presupposes the patient’s awareness of a decision to be made. As a
practical matter, however, many patients who have been harmed may lack the capacity even to
recognize the harm, or to consider the possibility of redress. According to one study of
hospitalized patients who were victims of negligence, 97% did not file suit. The researchers
found that most of these patients were advanced in age and poor. They posited that these
patients were less likely to obtain legal services. See DM Studdert, Negligent Care and
Malpractice Claiming Behavior in Utah and Colorado, 38 MED. CARE 250-260 (2000).
2003-04]
TRUE RISK MANAGEMENT
59
physicians should seek to establish strong relationships with their patients and avoid
questionable “defensive medicine” practices that can harm these relationships.
II. BACKGROUND
A. Physician Perception of Litigation Risk
Physicians correctly perceive that they are at greater risk of facing legal action
today than in the past. Malpractice lawsuits have dramatically increased over the last
three decades. For example, 80% of all claims between 1935 and 1975 occurred
after 1970,9 and the number of annual claims grew from 2.5 to 16 per one hundred
doctors between 1976 and 1984, respectively.10 Although the frequency of claims in
recent years has trended downward,11 the data show that over time more suits have
been brought. In addition, the task of plaintiffs’ lawyers has been made somewhat
easier by scrutiny of lists such as the National Practitioner Data Bank12 and
documents compiled by states detailing prior malpractice claims histories.
Physicians’ fears of liability also have been fueled by rising malpractice
insurance premiums, which are perceived by many physicians as the consequence of
an increasing volume of malpractice litigation and high jury awards. Although this
assessment tends to downplay other factors, it surely is not entirely off the mark. As
the General Accounting Office recently reported, “Multiple factors have combined to
increase medical malpractice premium rates over the past several years, but losses on
medical malpractice claims appear to be the primary driver of increased premium
rates in the long term.”13 To an unprecedented degree, physicians fear that a lawsuit
might make their future practice economically unsustainable.
B. Liability Risk and Technical Error
Concurrent with the rise of malpractice action in the last forty years, more
patients have fallen victim to iatrogenic (that is, treatment-caused) injuries. In a
9
TESTIMONY BEFORE SENATE COMMITTEE ON LABOR AND HUMAN
RESOURCES, 98th Cong. 2nd Session (testimony of Elroy Haines, Associate Director,
Professional Liability Department, American College of Obstetricians and Gynecologists,
Washington, D.C.).
10
Peter Huber, Injury Litigation and Liability in Insurance Dynamics, SCIENCE, Oct. 2,
1987, at 31.
11
Public Citizen, Quick Facts on Medical Malpractice Issues, available at http://www.
citizen.org/ print_article.cfm?ID=9125. Public Citizen reports that malpractice claims
declined by 4% from 1995 to 2000. Claims decreased from 90,212 in 1995 to 86,480 in 2000.
These figures were based on the National Association of Insurance Commissioners’ Statistical
Compilation of Annual Statement Information for Property/Casualty Insurance Companies in
2000, 2001.
12
The National Practitioner Data Bank (NPDB) was created as part of the Health Care
Improvement Act of 1986 (42 U.S.C. 11101 et. seq). Federal law mandates that select
information on medical malpractice payments be reported to the NPDB. See http://www.
npdb-hipdb.com/npdb.html for a summary of the legislation’s intent.
13
UNITED STATES GENERAL ACCOUNTING OFFICE, MEDICAL MALPRACTICE INSURANCE:
MULTIPLE FACTORS HAVE CONTRIBUTED TO INCREASED PREMIUM RATES,, GAO PUB. NO. 03702, at 43 (June 2003); see also http://www.gao.gov/cgi-bin/getrpt?GAO-03-702.
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JOURNAL OF LAW AND HEALTH
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1964 study, E. M. Schimmel found that 20% of patients sustained at least one
iatrogenic injury after being admitted into a university hospital medical service.14 In
1981, Steel and colleagues found that iatrogenic injury had risen to 36% of patients
studied in those same settings.15
Empirical evidence suggests that the increased incidence of iatrogenic injury is
correlated with higher rates of medical error. For example, in a 1991 study, Bedell
and colleagues found that 64% of cardiac arrests in one teaching hospital were
avoidable.16 In that same year, Harvard researchers analyzed 30,000 discharges in
51 New York State acute care, non-psychiatric hospitals from 1984 and found that
“adverse events” took place in 3.7% of these hospitalizations.17 These results were
consistent with a later study of 15,000 discharges in Colorado and Utah, which found
that adverse events occurred in 2.9% of hospitalizations.18 Compiling these and
other findings, the Institute of Medicine estimated hospital error to be responsible for
between 44,000 and 98,000 deaths per year.19 The IOM Report stated that
medication errors by themselves were responsible for 7,391 deaths in 1993, up from
2,876 deaths in 1983.20
The IOM Report also found that a significant percentage of these errors resulted
from negligence. So, too, did the earlier studies. Of the adverse events documented
in the Harvard Medical Practice Study, 27.6% were due to negligence.21 Similarly,
an average of 30% of the adverse events found in Colorado and Utah were caused by
negligent behavior.22
Although high rates of negligence are not sufficient to explain why more patients
are considering litigation, a breach in the standard of care is an essential component
of any medical malpractice cause of action. Therefore, physicians have properly
focused on minimizing technical errors, especially those caused by negligence, as a
way to reduce their risk of liability.
14
E.M. Schimmel, The Hazards of Hospitalization, 60 ANNALS
(1964).
OF INTERNAL
MED. 100
15
K. Steel et al., Iatrogenic Illness on a General Medical Service at a University Hospital,
304 NEW ENG. J. MED. 638 (1981).
16
S.E. Bedell et al., Incidence and Characteristics of Preventable Iatrogenic Cardiac
Arrests, 265 JAMA 2819 (1991).
17
See Troyan A. Brennan et al., Incidence of Adverse Events and Negligence Care in
Hospitalized Patients, 324 NEW ENG. J. MED. 370-376 (1991). The researchers defined
adverse event as “an injury that was caused by medical management (rather than underlying
disease) and that prolonged the hospitalization, produced a disability at the time of the
discharge, or both.”
18
See EJ Thomas et al., Incidence and Types of Adverse Events and Negligent Care in
Utah and Colorado, 38 MED. CARE. 261-271 (2000).
19
See Linda T. Kohn et al., INSTITUTE OF MEDICINE, TO ERR IS HUMAN: BUILDING A SAFER
HEALTH SYSTEM, at 1(1999) (hereafter “IOM Report”).
20
Id. at 27-28.
21
See Brennan et al., supra note 17, at 371.
22
See Thomas et al., supra note 18, at 261.
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TRUE RISK MANAGEMENT
61
C. Responses to the Increased Risk of Liability
Awareness of legal risk reinforces what in any event would be physicians’ focus
on avoiding technical error. It is well documented that a “culture of infallibility”23
exists in many medical settings. This culture may be rooted in the way physicians
are socialized to professional norms during their training in medical school and
residency programs.24 Physicians do not want to be subjected to the shame and
embarrassment before colleagues that often accompany admitting to medical errors.25
The authors of one analysis summarized their findings by stating that, “In a
profession that values perfection, error is virtually forbidden.”26 Consequently, it is
unsurprising that “some of the words that clinicians used to describe their responses
to their own mistakes [included] ‘devastated,’ ‘heartsick, . . . demoralized,
worthless.’”27
Intolerance of mistake in the medical profession may be unrealistic, as some
errors are inevitable in any human endeavor. We maintain, however, that physicians
are ethically obliged to try to minimize these errors to the best of their ability.
Moreover, as stated in the previous section, attempts to minimize technical error may
be legally beneficial. Yet, if this focus becomes single-minded, as manifested in an
uncritical “defensive medicine” approach, the ironic result may be an increased
likelihood that patients will file suit when inevitable errors do occur.
D. The Practice of Defensive Medicine
Defensive medicine occurs “when doctors order tests, procedures, primarily (but
not necessarily solely) to reduce their exposure to malpractice liability. When
physicians do extra tests or procedures primarily to reduce malpractice liability, they
are practicing positive defensive medicine. When they avoid certain patients or
procedures, they are practicing negative defensive medicine.”28
23
See Marshall B. Kapp, Medical Error Versus Malpractice, 1 DEPAUL J. HEALTH CARE L.
750 (1997).
24
See John F. Christenson et al., Wendy Levinson, & Patrick Dunn, The Heart of
Darkness: The Impact of Perceived Mistakes on Physicians, 7 J. GENERAL INTERNAL MED. 430
(1992).
25
Id. at 430; see also Jamie Dickey et al., Our Surgical Culture of Blame: A Time for
Change, 126 J. THORACIC & CARDIOVASCULAR SURG. 1259 (2003); Wendy Levinson &
Patrick M. Dunn, A Piece of My Mind: Coping with Fallibility, 261 JAMA 2252 (1989).
26
See MC Newman, The Emotional Impact of Mistakes on Family Physicians, 5 ARCH.
FAMILY MED. 74 (1996).
27
See Nancy Berlinger, Avoiding Cheap Grace: Medical Harm, Patient Safety, and the
Culture(s) of Forgiveness, 33 HASTINGS CENTER REP. 28, 34 (Nov.-Dec. 2003).
28
See U.S. CONGRESS, OFFICE OF TECHNOLOGY ASSESSMENT, DEFENSIVE MEDICINE
MECIAL MALPRACTICE, 301-804/17414, at 13 (1994) (hereinafter “OTA”).
AND
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JOURNAL OF LAW AND HEALTH
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Despite the inherent difficulty29 in quantifying defensive medicine, the Office of
Technology Assessment (OTA) found evidence of the practice in responses to
clinical surveys from members of three professional societies: the American College
of Cardiology, the American College of Surgeons, and the American College of
Obstetricians and Gynecologists. From 4.9% to 29% of responding members stated
that malpractice concerns were foremost in their minds when opting for an
“interventionist”30 procedure. A median of 8% of these “interventionist actions”
were chosen because of fears about malpractice.31 These survey data led the OTA to
conclude that, “if physicians actually practice as they say they would in these
surveys, positive defensive medicine does exist – although not to the extent
suggested by anecdotal evidence or direct physician surveys.”32 With respect to
negative defensive medicine, the OTA found from 16.2% to 64% of physicians
either withheld or decided against pursuing high-risk procedures because of
malpractice fears.33
Based on these data, the OTA concluded that, “[t]aken together, the findings
from studies reviewed . . . suggest that defensive medicine is a real phenomenon that
has a discernable influence in certain select clinical situations.”34 Although some
argue that one person’s “careful medicine” is another person’s “defensive
medicine,”35 studies show that its practice may be harmful to the patient and may
make physicians more susceptible to lawsuits.
III. DISCUSSION
A. Consequences of Defensive Medicine and
Flawed Risk Management Strategies
Thus far, we have shown that physicians correctly perceive their liability risk,
and some have responded to their fears of liability by practicing positive or negative
defensive medicine. In this section, we turn to the consequences of this practice and
other questionable risk management strategies employed by physicians. Although a
29
The authors of one study cited three potential weaknesses of surveys that measure
defensive medicine. These include: (1)“response bias”; (2) an exaggeration of the costs of
defensive medicine; and (3) a “noncausal” relationship between a physician’s increasing
concerns about liability and his or her’s purported defensive medicine practices. Daniel P.
Kessler & Mark B. McClellan, Medical Malpractice: External Influences and Controls, 60
LAW & CONTEMP. PROBS. 81 (1997).
30
These are defined by the OTA as “actions other than waiting or doing nothing.”
31
See OTA, supra note 28, at 56.
32
OTA relied primarily on survey data because few empirical studies have been conducted
on the extent of defensive medicine. Of the three studies the OTA reviewed, only one found a
relationship between malpractice risk and physician behavior. Localio et al. found that
patients in hospitals with high malpractice claim rates were 32% more likely to have a
Caesarean operation. See OTA, supra note 28, at 56.
33
Id.
34
Id.
35
See Mary McNaughton Collins et al., Medical Malpractice Implications of PSA Testing
for Early Detection of Prostate Cancer, 25 J. L. MED. & ETHICS 234-242 (1997).
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TRUE RISK MANAGEMENT
63
phenomenon with many factors cannot be simplified to one or two, the evidence
suggests that, contrary to many physicians’ assumptions, the practice of defensive
medicine and certain risk management approaches increase the likelihood that
physicians will get sued.
Isolating the motivations that underlie patients’ decision-making about litigation
is an inherently difficult task. Prospective research on the subject is particularly
challenging, because negligence occurs in only a small fraction of physician-patient
encounters, and, of these, relatively few result in litigation. Thus, retrospective
evaluations are more common, albeit the results of these studies may be slightly
biased; patients queried may be more likely to remember a situation in a negative
light in order to justify pending legal action.36
Even with these limitations, however, enough research has been conducted to
support the commonsense proposition that a patient’s sense of alienation from the
physician is a major reason for pursuing a lawsuit. In other words, even given
apparent error, a physician’s interpersonal skills may be the deciding factor in
whether or not the physician becomes a malpractice defendant.
B. The Importance of Communication
Patients value their relationships with their physicians. Consequently, the extent
and quality of communication between patient and physician likely impact patients’
decisions whether to sue. The link between poor patient-physician communication
and litigiousness on the part of patients is not a new observation. Many qualitative
studies and articles in the 1970s and 1980s hypothesized a connection.37 In the
1990s, these hypotheses were subjected to empirical analyses.
An influential study by Lester and Smith in 1993 measured the “litigious
feelings” of 160 adults.38 The research subjects were randomly assigned to view a
videotape in either of two groups. The tape for one group portrayed physicians using
“positive communication behaviors”;39 the tape for other group, “negative
communication behaviors.”40 Then, the subjects were questioned about their
36
Gerald B. Hickson et al., Factors That Prompted Families to File Medical Malpractice
Claims Following Perinatal Injuries, 267 JAMA 1359, 1362 (1992).
37
A 1984 study by Waitzkin summarized previous research on patient-physician
communication and found that patients desired that their doctors provide them with more
information. See H. Waitzkin, Doctor-Patient Communication: Clinical Implications of
Social Science Research, 252 JAMA 2441-2446 (1984). In 1989, Shapiro et al. conducted a
survey of suing patients who reported that better communication was the best way physicians
could avoid a lawsuit. See Robyn S. Shapiro, et al., A Survey of Sued and Nonsued Physicians
and Suing Patients, 149 INTERNAL MED. 2190 (1989).
38
See Gregory W. Lester & Susan G. Smith, Listening and Talking to Patients: A Remedy
for Malpractice Suits?, 158 WEST. J. MED. 268 (1993).
39
Id. These behaviors include “eye contact, friendly tone of voice, presentation of
information and requests for information, smiling, appropriate physical touch, self-disclosure,
acknowledgement of verbalizations, reflections of affect, and a long period of contact.”
40
Id. These behaviors include “no eye contact, harsh and clipped tones of voice, criticism,
a minimal presentation and requests for information, non smiling expressions, no friendly
physical contact, no acknowledgment of verbalizations, no reflection of affect, and a relatively
short period of contact.”
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JOURNAL OF LAW AND HEALTH
[Vol. 18:57
response to four possible outcome reports.41 In every scenario, the subjects’ reaction
varied with whether a physician practiced positive or negative communication
behaviors. The authors concluded that physicians may have the ability “to affect
their risk of lawsuits by changing the way they behave with patients.” The authors
added that “good communication behaviors . . . may prevent lawsuits, even when
something has clearly gone wrong and even when it is clearly the physician’s
fault.”42
Subsequent research has validated many of Lester and Smith’s findings. In a
study of 104 obstetric patients in a university medical center, Moore and colleagues
found a “direct, causal effect” of the physician-patient relationship on patients’
motivations to file suit.43 Once again, it was found that positive and negative
communication behaviors affected patients’ decisions whether to sue. Positive
interactions with physicians mitigated patients’ litigious intentions against hospitals
and their doctors. Even when a “severe” outcome was reported, patients were more
likely to harbor an intention to sue the hospital only. Furthermore, a good patientphysician relationship positively influenced patients’ perceptions of physician
“competence” and decreased their perceptions of physician fault when an
undesirable outcome had occurred.44
It appears that patient-physician communication has significance in various
specialities as well. For example, in addition to Moore’s data, a 1994 study by
Hickson and colleagues reported that obstetricians’ experiences with malpractice
were related to the quality of their interpersonal relationships with patients.45 Sued
physicians were less accessible and less communicative with their patients.
Similarly, in a 1997 analysis of malpractice claims of 59 primary care physicians
in Oregon and Colorado, Levinson and colleagues found important differences in the
communication patterns physicians who were sued and those who were not.46
Physicians who were not sued spent more time with patients, provided “orienting”47
statements that helped guide patient expectations, and skillfully used humor in their
interactions.
41
Id. These include a good outcome (correct diagnosis), a bad outcome in which the
physician was not at fault, a bad outcome in which it was unclear whether the physician bore
responsibility, and a bad outcome in which the physician clearly bore responsibility.
42
See Lester & Smith, supra note 38.
43
See Phillip J. Moore et al., Medical Malpractice: The Effect of Doctor-Patient Relations
on Medical Patient Perceptions and Malpractice Intentions, 173 WEST. J. MED. 248 (2000).
44
Id.
45
See Gerald B. Hickson et al., Obstetricians’ Prior Malpractice Experience and Patients’
Satisfaction with Care, 272 JAMA 1583 (1994).
46
See Wendy Levinson et al., Physician-Patient Communication: The Relationship with
Malpractice Claims Among Primary Care Physicians and Surgeons, 277 JAMA 553 (1997).
However, Levinson and colleagues also looked at communication behaviors of surgeons with
and without claims against them and found that no statistically significant correlation to exist.
47
Levinson provides examples of these statements: “First I’ll examine you and then we
will talk the problem over” or “I will leave time for your questions.”
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C. Disclosure of Mistakes
Successful physician-patient communication goes well beyond a doctor’s bedside
manner. Studies have consistently shown that patients desire openness and honesty,
especially when it concerns medical error. For example, in one analysis, 98% of
patients surveyed wanted physicians’ “active acknowledgment”48 of an error.49 In
another study of patients who visited an ophthalmologist’s clinic for five weeks in
1998, 92% believed that they should always be informed of “complications.”50 Also,
81% of patients stated that “detailed information on possible adverse outcomes” was
necessary.51 A 2003 analysis by Gallagher and colleagues confirmed these
findings.52
Although these and other studies have documented patients’ preferences for full
disclosure of mistakes, physicians have been reluctant to admit error to patients.
Indeed, many physicians have made conscious decisions to be less than forthcoming
with their patients. In one study, 87% of physicians surveyed stated that deception is
permissible in certain instances.53
Physicians’ willingness to engage in deceptive practices by not disclosing error
can be attributable to physicians’ legal concerns. Many physicians fear that
disclosing errors to patients will increase their liability risk.54 Given this fear, to do
so would strike many physicians as counterintuitive.55 These fears are driven by
assumptions that the legal system severely penalizes those who commit errors.56
They are also based upon misguided risk management models that recommend less
than full disclosure.57 Even in instances where legal counsel recommends admission
of error, rarely does this admission incorporate an apology for mistakes made.58
48
This acknowledgment ranged from recognition of an error to a full apology.
49
Amy B. Witman et al., How Do Patients Want Physicians to Handle Mistakes?: A
Survey of Internal Medicine Patients in an Academic Setting, 156 ARCHIV. INTERNAL MED.
2566 (1996).
50
Melanie Hingorani et al., Patients’ and Doctors’ Attitudes to Amount of Information
Given After Unintended Injury During Treatment: Cross Sectional, Questionnaire Survey,
BRIT. MED. J. 318 640 (1999).
51
Id.
52
Thomas H. Gallagher et al., Patients’ and Physicians’ Attitudes Regarding the
Disclosure of Medical Errors, 289 JAMA 1001 (2003).
53
Dennis H. Novack, Barbara et al., Physicians’ Attitudes Toward Using Deception to
Resolve Difficult Ethical Problems, 261 JAMA 2983 (1989).
54
See Kapp, supra note 23.
55
David M. Studdert et al., Medical Malpractice, 350 NEW ENG. J. MED. 283 (2004).
56
See Kapp, supra note 23.
57
Steve S. Kraman, A Risk Management Program Based on Full Disclosure and Trust:
Does Everyone Win?, 27 COMPREHENSIVE THERAPY 254 (2001).
58
Daniel Finkelstein et al., When a Physician Harms a Patient by a Medical Error:
Ethical, Legal, and Risk Management Considerations, 8 J. CLINICAL ETHICS 334 (1997).
66
JOURNAL OF LAW AND HEALTH
[Vol. 18:57
The assumption that the disclosure of mistakes leads to an increased risk of
litigation is inconsistent with relevant research findings. Indeed, research has shown
that less than full disclosure of mistakes may increase the likelihood that patients will
file suit. For example, a 1994 study by Vincent and colleagues cited patient
dissatisfaction with physicians’ explanation of “incidents” as a major reason for
pursuing litigation.59 Less than 40% of the explanations given were considered
“sympathetic.” An apology was offered and responsibility was taken in only 13%
and 15% of these explanations, respectively.60 Other studies have similarly drawn
empirical links between physicians’ lack of forthrightness and litigiousness among
patients.61
A recent survey of health maintenance organization members suggested that full
disclosure after a medical error not only “improves patient satisfaction, increases
trust in the physician, and results in a more positive emotional response” but also, at
least under some circumstances, “may . . . reduce the likelihood that patients will
seek legal advice . . . .”62 The strength of these findings has prompted some
physicians, hospitals, and insurers to call for new risk management strategies that
emphasize complete and empathetic honesty in all patient-physicians interactions,
even in the face of medical error.63
D. A Patient-Centered Approach
We conclude with a brief account of an alternative to physicians’
counterproductive defensive medicine practices and negative communication
behaviors, which are intended to decrease but actually may increase tort risk. This
approach, usually termed “patient-centered medicine,” is the only mode of practice
that can reduce physicians’ risk of liability and at the same time exemplify the
professional virtues that excellent physicians strive to attain.
There is no universal definition of patient-centered medicine. Rather, in contrast
with traditional “physician-centered” medicine, it embodies the concept that patients
should have the right to exercise greater control in their health care decisions.64
Since the 1950s, patient-centered care has slowly gained a foothold in mainstream
medicine. Over this period, several modifications have been proposed to the
59
See Charles Vincent et al., Why Do People Sue Doctors: A Study of Patients and
Relatives Taking Legal Action, 343 THE LANCET 1611 (1994).
60
Id.
61
See, e.g., Witman et al., supra note 49; Hingorani et al., supra note 50; Vincent et al.,
supra note 59. This link is not limited to physicians. For example, one study examines the
disclosure of mistakes in dentistry. See Gary T. Chiodo et al., Disclosure of Mistakes, 47 GEN.
DENT. 24-28 (1999).
62
Kathleen Mazor et al., Health Plan Members’ Views about Disclosure of Medical
Errors, 140 ANNALS INTERNAL MED. 409, 416 (2004).
63
Rachel Zimmerman, Doctors’ New Tool to Fight Lawsuits: Saying ‘I’m Sorry,’” WALL
ST. J., May 18, 2004, at A1; Steve S. Kraman & Ginny Hamm, Risk Management: Extreme
Honesty May Be the Best Policy, 131 ANNALS INTERNAL MED. 963 (1999); see also Kraman,
supra note 57.
64
Christine Laine & Frank Davidoff, Patient-Centered Medicine: A Professional
Evolution, 275 JAMA 152 (1996).
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traditional patient-physician relationship. For example, in 1956, Szasz and
Hollender suggested that some patients should have a partnership role in the
relationship.65 In 1976, Lazare and colleagues advised a “negotiated approach” by
which physicians integrate patients’ attitudes and values into their care.66
Similarly, in 1992 Emanuel and Emanuel advocated a “deliberative model” that
enables the patient to “consider, through dialogue, alternative health-related values,
their worthiness, and their implications for treatment.”67 In a subsequent article,
Ezekiel Emanuel described the “ideal patient-physician relationship” as one that
recognizes “respect for patient autonomy.” He explained that this relationship
consists of six C’s – Choice, Competence, Communication, Compassion, Continuity,
and (No) Conflict of Interest68 – and serves “as the cornerstone for achieving,
maintaining, and improving health.” Although few would claim that the ideal
patient-physician relationship is regularly attained, likely the medical community is
more accepting of greatly increased involvement of patients in decisions about the
type of care they receive.69
The patient-centered approach commends itself for two reasons. First, the
practice of patient-centered medicine will reduce physicians’ risk of liability.
Second, a patient-centered approach is in keeping with the ethical norms of the
profession.
The weight of empirical data, summarized in Part III above, establishes that the
quality of the patient-physician relationship is an important factor in patients’
decisions whether to sue. This relationship is enhanced through effective physicianpatient communication, openness and honesty when medical errors occur, and
responsiveness to patients’ treatment desires. The research findings suggest that
high marks on these criteria lessen the chance that physicians will find themselves
subject to a lawsuit. Patient satisfaction with the patient-physician relationship most
likely is attained when physicians are practicing patient-centered medicine.
65
T.S. Szasz & M.H. Hollender, The Doctor-Patient Relationship, 97 ARCH. INTERNAL
MED. 585-592 (1956).
66
A. Lazare et al., Studies on a Negotiated Approach to Parenthood, in THE DOCTORPATIENT RELATIONSHIP IN THE CHANGING HEALTH SCENE, PROCEEDINGS OF THE FOGARTY
CENTER INTERNATIONAL CONFERENCE, U.S. Department of Health, Education, and Welfare,
Pub. No. 78-183 (1976).
67
Ezekiel J. Emanuel & Linda L. Emanuel, Four Models of the Physician-Patient
Relationship, 267 JAMA 2222 (1992).
68
Ezekiel J. Emanuel, Preserving the Physician-Patient Relationship in the Era of
Managed Care, 273 JAMA 328 (1995).
69
This acceptance was accelerated by developments in the law of informed consent. See,
e.g., Canterbury v. Spence, 464 F2d 772, 787 (D.C. Cir. 1972), cert denied, Spence v.
Canterbury, 409 U.S. 1064 (1972); Cobb v. Grant, 502 P.2d 1 (Cal. 1972). In the 1990s, the
Cruzan case ushered in a new era of patient rights concerning end-of-life care. Cruzan v.
Director, Miss. Dep., 497 U.S. 261 (1990). In the aftermath of the Supreme Court decision,
Congress passed the Patient Self-Determination Act, 42 U.S.C. §§ 1395cc(f)(1), which
requires hospitals and other facilities to provide information to patients about their rights to
accept or refuse surgical or medical treatments and to prepare advance directives.
68
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[Vol. 18:57
Patient-centered medicine allows for the truthfulness and the transparency
between patient and physician that ethical practice requires.70 This is especially true
with respect to medical errors. When doctors decide against revealing mistakes, they
are in violation of their professional responsibility.71 The profession’s leading bodies
have stated an ethical imperative to disclose unfavorable outcomes. These include
the American Medical Association’s Council on Ethical and Judicial Affairs, which
has stated that “situations occasionally occur in which a patient suffers significant
medical complications that may have resulted from the physician’s mistake or
judgement. In these situations, the physician is ethically required to inform the
patient of all facts necessary to ensure understanding of what has happened.”72 Also,
according to the American College of Physicians’ Ethics Manual, physicians should
disclose to patients information about procedural or judgement errors made in the
course of care, if such information is material to the patient’s well-being.73
IV. CONCLUSION
Sharply rising malpractice insurance premiums and the frequency of litigation
directed against physicians garner most of the headlines in any debate concerning
tort reform. The familiar arguments between the proponents and opponents of
reform, however, do not address the nature of the relationship within which patients
receive care.74
Although the provision of quality care has generally been understood by
physicians in terms of technical proficiency, we have focused attention on the
interpersonal dimensions of care. Indeed, numerous studies have shown that
patients’ dissatisfaction with non-technical aspects of care is a key factor in their
decisions whether or not to pursue litigation. In light of these data, we advocate for
the practice of patient-centered medicine, which we believe to be the best legal and
ethical means by which physicians should respond to their rational fears of being
sued.
Our endorsement of a patient-centered approach to medicine is not without
recognition of challenges to its practice. In this era of managed care, several
important components of a successful patient-physician relationship have been
compromised. Many patients have had to change physicians as their choices of
health plans have been narrowed by employers, and some have joined the ranks of
the uninsured. In addition, cost containment has placed an increased burden on
primary care physicians. This increased workload has resulted in more patients per
physician and shorter appointment times. Furthermore, the quest for efficiency
70
Albert W. Wu et al., To Tell the Truth: Ethical and Practical Issues in Disclosing
Medical Mistakes to Patients, 12 J. GENERAL INTERNAL MED. 770 (1997).
71
Phillip C. Herbert et al., Bioethics for Clinicians: 23. Disclosure of Medical Error, 164
CAN. MED. ASS’N J. 509 (2001).
72
AMERICAN MEDICAL ASSOCIATION, COUNCIL ON
OF MECIAL ETHICS, CURRENT OPINIONS 110 (2002).
ETHICAL
AND JUDICIAL
AFFAIRS, CODE
73
Lois Snyder & Cathy Laffler, Ethics Manual, 142 ANNALS INTERNAL MED. 560, 563 (5th
ed. 2005).
74
A description or analysis of the tort reform debate is beyond the scope of this paper.
2003-04]
TRUE RISK MANAGEMENT
69
produces tension in physicians who want to provide good care and also abide by
their contractual obligations to the health plans.75
Managed care has also fundamentally altered the role that physicians play as
advocates for patients. As Professor William Sage states, this traditional role was
uncontroversial: “[p]hysicians had a duty not to harm patients, to practice in patients’
best medical interests, to respect patients’ wishes, to put patients’ welfare above
personal considerations, and to preserve patients’ confidences.”76 Sage adds that,
prior to the managed care era, physicians had “privileges” including the ability “to
follow their own values and beliefs, to serve whom they chose, and to shield patients
from bad news.”77 Under managed care, however, physicians have often found
themselves in an adversarial role with their patients. The constraints of cost have
prompted physicians to treat their patients impersonally and as “consumers on
insurance.”78
Despite these challenges, we maintain that a successful patient-physician
relationship is possible. Physicians should realize the perils of “defensive medicine”
and other behaviors that do not treat the patient with respect and are inconsistent
with the core tenets of good medicine. These behaviors will likely increase the
liability risk that physicians face. Whatever the outcome of the tort reform debate, it
is in physicians’ ethical and legal interest, to practice patient-centered medicine.
75
See Emanuel, supra note 67.
76
William M. Sage, Physicians as Advocates, 35 HOUS. L. REV. 1531 (1999).
77
Id.
78
Id. at 1532.